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Your house may no longer be yours if you are legally married

In Ontario, family laws see marriages as equal partnerships between spouses, and if that partnership ends, assets must be shared equally. Couples who want to take measures to ensure their separate property remains separate can sign a marriage contract to do so. Such an agreement can specify the assets each spouse brought into the marriage, and ensure that these items would once again be separate property in the event of a divorce.

This would be of particular importance if you owned a home before you got married. If that house then became the matrimonial home, the law will not see it as separate property if you separate or your marriage ends and you have no marriage agreement signed in which your spouse gives up a claim to the property.

What types of housing does the term matrimonial home include?

The property that the law regarding matrimonial homes covers does not necessarily have to be a freestanding house. It could be any one of the following:

  • A section of a house
  • A part of a building that also serves as a business
  • A condominium
  • A mobile home
  • A suite

What if the house is in my name?

Your ex-spouse will be entitled to stay in the matrimonial home regardless of the fact that the title is in your name. This is the way the law protects both spouses during the period of separation before the court issues the final divorce decree -- which could take months or even years. Once a couple is legally married, such property becomes a shared asset, and neither you nor your spouse may do anything to the home, or sell any part of it, without the other's consent.

Such an arrangement could be impractical or not feasible because highly contentious divorces can bring about volatile situations. However, you or your spouse may petition the court for an exclusive possession order. This means that the court will order one spouse to move out and leave the home for the exclusive use of the other for the duration of the separation. However, this does not make the matrimonial home the property of the spouse who has an exclusive possession order.

Avoid unpleasant surprises

If you are considering a separation from your spouse, you will likely have several questions about the legal aspects of separation and divorce. It might be better to avoid unpleasant surprises by being prepared and well-informed.

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